The European Parliament election and Brexit delay – not a major headache

Brexit negotiations are heading towards their hardest phase. With less than 6 months to go, with no solution to the Irish Border problem in sight, and with Theresa May in a precarious position within her own party, the chances of actually getting a Withdrawal Agreement that is acceptable to both sides look slim. Meanwhile both sides know that No Deal is a catastrophe. More so for the UK than for the EU, but painful nevertheless for the EU side too (and especially Ireland, France, Belgium and Netherlands).

One way out of this impasse would be an extension to the negotiation period foreseen in Article 50. I have long argued that this is a better way forward than pushing all the major decisions into a transition period. Extending Article 50 requires the unanimous agreement of the EU-27 – a high hurdle – but that would be possible to achieve if political turbulence in the UK (the ousting of May for example), or the impending danger of a No Deal, necessitated it.

Yet whenever I raise the issue of extending Article 50, I am hit with a question in return: what about the European Parliament elections, due 24-27 May 2019?

A very short term Article 50 extension – a matter of weeks beyond 29 March 2019, but Brexit still happening on a date before the European Parliament elections starting 24 May – might just about work. This could be used to deal with a last minute hiccup.

But an election where the UK is a Member State of the EU the day causes all sorts of headaches – German law for example says anyone voting in, or running in, the European election must be a EU citizen on the election day. If Brexit were to legally happen any time after the EP elections, even a day after, Brits resident in Germany would have the right to vote and to run for the EP. And were Brits in Germany to have this right, what about Brits in the UK…?

My conclusion is hence that any Article 50 extension would have to be either a couple of weeks, or – more likely – for months and months, well beyond the European elections. If you are going to extend past the EP elections, then better give yourselves some proper time for negotiations, not just make another negotiation cliff edge sometime in autumn 2019.

But that means organising a European Election in the UK.

This is not as hard as you might think.

The UK has a history of calling snap elections. The 2017 General Election in the UK was all organised within 7 weeks and 2 days. 7 weeks and 2 days ahead of 24 May 2019… is 3 April. After the timetabled Brexit day. The UK’s Electoral Commission has already also set aside a budget to organise such a vote, much to the chagrin of some Brexiters. So no problem UK side. Likewise parties had to scramble for candidates in 2017 – so would also be the case here. But finding people ready to run (not least from among the ranks of Remain people, and among EU-sceptics) would not be hard.

Likewise on the EU side the administrative hurdles are not too onerous. The rules that reallocated the UK’s MEPs to other countries make it explicit that these changes only happen if and when the UK leaves the EU. Page 7 of this Decision (PDF), the important part here:

We also have precedent for changing the composition of the European Parliament during a parliamentary term.

Ratification of the Treaty of Lisbon (that enlarged the European Parliament to 751 MEPs) was delayed due to the second referendum in Ireland. That meant that the extra 18 MEPs were only able to take up their seats on 1 December 2011, 2 years and 7 months after the 2009 European Parliament elections. This article explained how it all worked out.

The same could work for UK MEPs in the European Parliament post-2019. Elect the 73 MEPs for the UK, and those MEPs would then sit until the date that the UK leaves the EU. And then when the UK leaves and the UK MEPs leave the parliament, the extra MEPs from other Member States (Netherlands gets 3 more, Ireland 2 more etc. – all explained here) would then step in.

I have also heard the argument made that such an election in the UK would result in a whole slew of EU-sceptics and the populist right entering the European Parliament from the UK, and hence such an election should not happen.

This argument I find ridiculous.

If the British people are still EU Citizens on the day of the European Elections it is obvious that they should have the right to vote in the European Election, and it is the choice of those voting who they choose to represent them (this is what happened in 2014). During the Article 50 period the UK is still a Member State of the European Union, and not holding a European Election in a Member State of the European Union would be a democratic scandal.

The same would then happen in the European Commission – the UK would get a Commissioner up until the day that it leaves the European Union. The successor to Julian King would be chosen in the autumn of 2019 if the UK is still in the EU at this point.

So, to conclude: it would no doubt be an unusual election in the UK in May 2019. But the organisational hurdles in the way of such an election are relatively easy to surmount (and they are nothing in comparison to those a No Deal Brexit throws up), and if the UK is still in the EU on 24th May 2019 then not organising an election there would be unacceptable from a democratic standpoint.

[UPDATE 22.10.2018, 1430]
This posted prompted an interesting follow up debate on Twitter, with this being the most interesting part. A derogation under Article 22 from holding an EP election in the UK might be proportionate if Brexit were certain to happen, but had not happened, on the day of the EP elections. I think the conclusion of this would be that, if necessary, some technicalities could be solved still after election day, but these would need to be relatively minor. With this caveat I think the essence of this blog post nevertheless still stands.

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